Senators preview legal challenges to GMO labeling law

Dr. Michael Hansen (left), with the Consumers Union, disputes the testimony of Dr. Val Giddings, of the Information Technology and Innovation Foundation, at a hearing on GMO labeling. Photo by Hilary Niles/VTDigger

State lawmakers got a sneak preview Wednesday of the court battle that likely awaits if they pass a law requiring genetically modified foods sold in Vermont to be labeled.

Industry representatives both for and against a labeling law gave heated testimony at the Statehouse to members of the Senate Judiciary Committee, where a bill that already passed the House now awaits action.

H.112 would mandate that most packaged foods be labeled if they contain genetically modified organisms. As currently written, dairy products, alcohol and meat, plus restaurant food, would be exempted from the law.

Sen. Dick Sears, D-Bennington, chair of Senate Judiciary, said he supports the bill, but his biggest concerns are the potential cost of litigation and the dairy exemption.

Assistant Attorney General Bridget Asay testified that the state may spend about $1 million defending the law in court. Even if it is successful, she said it would be hard to recover legal fees. If the state lost, the legal challenge could cost $5 million or more. The estimate includes the state’s costs and potential reimbursement for a victorious plaintiff.

Given the size of the potential price tag, Sears says, he wants to make sure the law is failsafe.

To that end, the hearing Wednesday served as a preview of what challenges opponents may lodge against the pending legislation. Sears said the expert testimony opposing a labeling law comprised the first negative comments his committee had heard, though the Senate Agriculture Committee previously gathered opposing views in their deliberations.

Potential amendments

As senators finalize the bill for a committee vote by the end of March, two major amendments emerge as possibilities: One to require a legal defense fund to cover the costs of litigation, and another to eliminate the dairy exemption for fear it may undermine the bill’s viability in court.

Asay conveyed Attorney General Bill Sorrell’s concerns about a proposal to pass the bill only if a privately funded legal defense fund would be established to cover the expense of legal challenges.

“If the Legislature concludes that a proposed law serves the public interest and should be adopted notwithstanding the possibility of a legal challenge, it should pass the law and assume the cost of its defense,” Sorrell wrote in a letter to Sears.

“Quite frankly that boxes us in,” Sears told Asay at the hearing. He said he thinks it would be irresponsible to set the state up for a potentially costly lawsuit without setting aside the money to pay for it.

Sen. Jeanette White, D-Windham, said she’s troubled by the prospect of setting a precedent for only supporting what can be backed by wealthy interests.

The legal defense fund idea was not part of the Senate Agriculture bill, Sears acknowledged after the hearing, but he said that doesn’t mean the idea can’t be revisited.

Leaving dairy out of the bill was a strategic move on the part of VPIRG.

“We wanted to make the law about genetically modified foods,” said Falko Schilling, a lobbyist for the Vermont Public Interest Research Group. “Milk itself is not genetically modified,” Schilling said, even though milk-producing animals may consume GMO grains.

VPIRG’s pro bono legal counsel, the Environmental and Natural Resources Law Clinic at the Vermont Law School, testified that case law also supports the exemption. Andrew Homan cited the failed regulation of the growth hormone rBST as a lesson that any object of labeling regulation must be provably different from the products that don’t require labels.

Milk samples from animals that have and have not consumed GMO grains have not been proven compositionally distinct, he said. Therefore, they should be treated the same. Genetically modified ingredients in food products, however, can be detected.

Still, Sears wants assurance.

“Do we have a reason, that can be defended in court, that exempts dairy and not corn chips,” he asked. “Or is it because Vermont is a big dairy state?”

legal arguments

A potential lawsuit would hinge on several legal arguments: First Amendment rights and protections against compelled speech, “equal protection” laws, rules prohibiting conflict between state and federal laws, and the so-called “dormant commerce” clause saying states can’t make laws that will have adverse impact on interstate commerce.

The differences are critical because many legal arguments — especially that of compelled speech — revolve around whether or not GMO products are different, and whether the information contained in a label is “fact.”

Wednesday morning, labeling supporters said the federal Food and Drug Administration had not determined whether or not GMO foods are safe. But labeling opponents said the FDA had clearly determined that they are.

Stanley Abramson, an attorney with Arent Fox PLLC who represents the Biotechnology Industry Organization, as well as global agricultural firm Monsanto, is a former lawyer for the Environmental Protection Agency and a principal drafter of the federal government’s Coordinated Framework for Regulation of Biotechnology. Abramson testified by phone from Washington, D.C., to caution against the labeling law.

He said the FDA’s position is that GMO food should be held to the same safety standards as anything raised through traditional breeding techniques. This implies the two groups of food are “substantially similar” and therefore should be treated equally under the law. Any labeling requirement to distinguish GMO food would be misleading, Abramson testified.

Abramson’s position was echoed by Dr. Val Giddings, a geneticist by training who now works as a private consultant and who testified as senior fellow at the Information Technology and Innovation Foundation in Silver Springs, Md. Giddings and Dr. Michael Hansen, a senior staff scientist with the Consumers Union, differed emphatically on bodies of science surrounding GMO foods.

Giddings testified at length about a lack of credible scientific evidence that GMO foods pose any risks.

“If the state decides to move into that sphere of deciding what needs to be placed on the label, there is a risk it will be in violation of that federal standard,” Abramson said.

The flip side of federal law and policy treating GMO and non-GMO food equally is that there is no mention of GMO products in the federal Food, Drug and Cosmetic Act. When it comes to the interplay between federal and state laws, federal statutes hold sway. No state law can preempt a law of the nation.

“The state requirement to label does not conflict with any federal law because there is none,” said Hanses, of the Consumers Union.

The other member of VPIRG’s counsel at the hearing, Laura Murphy, said similar labeling laws bolster the state’s defense on the grounds of interstate commerce.

Should it pass, H.112 would not take effect for one or two years, to allow time for rule making by the state and compliance among food producers. Asay noted, however, that if any parties intend to sue over the law, they likely would file suit very quickly after passage, not waiting for the effective date to roll around.

UPDATE: This article was updated at 1:45 p.m. on Thursday, March 20, 2014.

Hilary Niles joined VTDigger in June 2013 as data specialist and business reporter. She returns to New England from the Missouri School of Journalism in Columbia, where she completed her master's coursework. Read more

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Al Salzman

2 years 8 months ago

The news that France has just outlawed GMO corn should underscore the urgency for passing the GMO labeling bill. At the very least, we have a right to know what we are ingesting. It is a no-brainer! Monsanto’s threat to take legal action is brazen extortion, equivalent to mafia thugs threatening violence to collect protection money. Every Vermonter worth his or her salt should stand up against this corporate thuggery. It should, by no means, impede the passage of the labeling law.

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Karissa Campbell

2 years 8 months ago

Well said!! The fact that there is such a battle over this to begin with is just awful. Corporate thuggery at its worst!!

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Jamie Carter

2 years 8 months ago

Interestingly the EU has funded over 130 studies carried out by more then 500 independent researchers on GMO’s and GMO safety, not one single study has shown any special risk associated with a GM crop.

Makes it crazy that Frances government passed a law that directly opposes the findings of their scientists…

Bottom line Round Up is the #1 cause of birth defects. Just one premature baby can cost millions. Huge burden on parents, society, and healthcare. Dr. Michael Hansen and Dr. Charles Benbrook have both confirmed that Round up is dumbing down our children by attacking brain cells (is neurotoxin) in the fetus so crippled before even born then continue to feed in formula and even breastmilk. Leah Zerbe, Online Editor, Rodale Press/Research Institute and Organic Farmer said Rodale has reported the cost of even a couple of IQ points lost is devastating to our country for ideas and innovation lost.… Read more »

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J. Scott Cameron

2 years 8 months ago

Umm, we’re talking about GMOs dear. Roundup is an herbicide. Just sayin’.

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Barry Kade

2 years 8 months ago

Yes, Roundup is an herbicide. GM crops are designed to be “Roundup Ready”, meaning they can tolerate the herbicide. Now that the weeds are building their own resistance to Roundup, more of it is used and ending up in our food. Rather “your food.” I avoid it where I can.

“Virtually all commercial GMOs are engineered to withstand direct application of herbicide and/or to produce an insecticide. Despite biotech industry promises, none of the GMO traits currently on the market offer increased yield, drought tolerance, enhanced nutrition, or any other consumer benefit. Meanwhile, a growing body of evidence connects GMOs with health problems, environmental damage and violation of farmers’ and consumers’ rights. – Read the whole story here: http://www.nongmoproject.org/learn-more/ -Here,Carman explains, “At a commercial piggery in the US, we took 168 just-weaned pigs and fed them a typical diet for the piggery, containing soy and corn, for 22.7 weeks (over… Read more »

Mark Lynas is now on the corporate payroll and is frequently trotted out by biotech as someone who has miraculously ‘seen the light’ as he now endorses GE food.

“Junk Science” is the stock biotech phrase used to discredit any and all questioning of genetic engineering and its products.

Everything he says should be considered suspect.

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Jamie Carter

2 years 8 months ago

Hmmm, lets see we can believe Judy Carmen, a know anti-GMO advocate and her non-peer reviewed data or we can believe her peers who indicate that the data supports pretty much non of her conclusions. Her statistics do not agree with her conclusions, which is why this was never a published study but rather hogwash added to her website GMOJudy.org. Besides Lyman it has been discredited by many other of her peers Dr. Kniss “If I were to have analyzed these data, using the statistical techniques that I was taught were appropriate for the type of data, I would have… Read more »

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Patrick Cashman

2 years 8 months ago

Actually Lynas has advocated for labeling on the basis of consumer right to know. He just points out the completely baseless demagoguery of the anti-GMO crowd. In this case, the particular study referenced above. From his speech at the food integrity summit available at http://www.marklynas.org/2013/10/why-we-need-to-label-gmos/ ” So those of us who want to defend science and who understand the true potential of biotechnology have no option – we have to change the game. My challenge to the biotechnology industry – the whole food industry in general in fact – is very clear. You have to stop opposing labelling. Instead, you… Read more »

Would Monsanto really want a trial where such evidence could be presented that there really is a difference between GM and natural produce? Is the talk of a lawsuit a bluff?

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Ruth Sproull

2 years 8 months ago

It’s hard to understand why it would be controversial (making the State legally vulnerable) to require producers of our food to tell us what’s in it. Maybe the solution is for those who DO NOT use GMOs to clearly label their foods as such. That would leave all the others as GMO-laced and would be a clear tip- off to consumers.

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Jamie Carter

2 years 8 months ago

This makes too much sense for the Vermont Legislature.

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Janice Prindle

2 years 8 months ago

The companies that might engage in a legal challenge will have a hard time explaining why they refuse to do in Vermont/the U.S. what they already do in Europe, to sell to the European markets which do, most of them, require this labeling (where they allow GMO foods at all). And if Vermont adopts this law, we join Connecticut and Maine, and begin to create a critical mass of states that will drive the rest of the country to do the same. Massachusetts is also considering this legislation. There is a lot at stake here beyond our right to know… Read more »

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Jamie Carter

2 years 8 months ago

Monsato does not fund as much research as you think, nor do they have the pull and sway you credit them with.

Your link has nothing to do with my response? So one of Monsanto’s former employee was hired by King Obama… not one of Obama’s better picks but it doesn’t change how little research has actually been funded by Monsanto, nor does it change this hysteria that they control the world and it’s food. It is akin to blaming all the worlds automobile safety problems on Yugo.

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Char Kennedy

2 years 8 months ago

All of us have a right to know what is being put into our food chain. While our garden with organic seeds and plants provides a lot of our food not all of it can grow there. So we want to know what we are ingesting and then be allowed to choose what ingredients we will purchase.

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Jamie Carter

2 years 8 months ago

How can you possible know what is put into the food chain? Are you aware that more then 8% of your DNA is not human? Do you know that naturally occurring plants have been found with 6 genomes worth of foreign DNA? The swapping of foreign DNA is one of the primary mechanisms by which evolution is affected. Just because you go buy wheat that isn’t GM doesn’t mean that it’s DNA is only wheat, in fact there is pretty much a guarantee it’s not. Go buy non-GMO corn seed and plant it, I bet the farm you will find… Read more »

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Jamie Carter

2 years 8 months ago

Please do not use obvious sites with an agenda as sometype of proof for your argument. The internet has become a great tool for information, however I believe it will be the down fall of our society with all the misinformation that is presented… Regarding the proposed law… It would seem to me it would be easier and just as effective for non-gmo farmers to label their products as such. This accomplishes the same thing, and yet it does not compel anyone else to do anything against their will, while meeting constitutional mustard. Why is it people always want to… Read more »

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Michael Colby

2 years 8 months ago

If the GMO-related issues weren’t so serious it would be entertaining to watch, listen and read about all the contorted positions of the weak-kneed liberals pushing the GMO-labeling bill. On one hand, they talk about how dangerous and threatening these products are to people and the environment. Then they want us to believe that a label will somehow address these problems. If only they could teach the monarch butterflies to read…. But it gets worse. Because the advocates of the GMO-labeling bill are exempting dairy and meat products from the label requirement, thus ignoring the number one crop being grown… Read more »

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Paula Schramm

2 years 8 months ago

Michael Colby – the ” weak-kneed liberals” are smarter than you in understanding what bill has the likelihood to stand up in court against a suit from Monsanto et al. The issue of milk & meat exemption is presented in a very confusing way in the article, but the gist of it is that the FDA has specific regulations about milk & meat, and that would allow a challenge based on federal law superseding state law. Whereas : “The flip side of federal law and policy treating GMO and non-GMO food equally is that there is no mention of GMO… Read more »

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Jamie Carter

2 years 8 months ago

Here is an interesting note, it is projected to take a near doubling of current crops simply to feed the worlds population by the year 2050 (that’s about 35 years folks). We can waste all the money we want on climate change and fighting GMO labeling, but it isn’t going to do much good when your children starve to death because there simple is not enough food and we do not have the capacity to grow more. It’s time a choice is made, should we pursue increasing our food supply through GMO’s, or should we limit the number of offspring… Read more »

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Paula Schramm

2 years 8 months ago

Jamie Carter – You are setting up a false dichotomy : there are plenty of cases where GMO crops are not more productive than other crops and other methods of agriculture. So it is not a choice of GMOs or starving people. Do some more reading….. One good place to start is “Stolen Harvest” by Vandana Shiva. It’s from 2000, so there are more recent works, but it’s a good place to start to get a big-perspective view about GMO technology claims of being able to “feed the world”. I have lived in India and Kenya, and I can see… Read more »

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rosemarie jackowski

2 years 8 months ago

This has been going on way too long. Consumers need information. We need an AG who is willing to go up against Monsanto and the rest of them.

This is not a particularly well-written article and makes some pretty sweeping generalizations that ignore or marginalize scientific and environmentalist concern around the world about the GMO industrial agriculture model. This issue is not about what a few “post-Occupy lefties” and other assorted”crazies” think, but a serious world-wide debate about what kinds of agriculture will be sustainable and will feed the world. The jury is definitely out about GMO agriculture being “the answer”, no matter what Bill Gates thinks. If you are an environmentalist or ecologist, you cannot help but be alarmed by what has happened with agriculture in this… Read more »

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James Gill

2 years 8 months ago

Scott, I think your referenced article ‘hits the nail on the head’. This entire issue is fueled by the environmental religion where ‘unless it is natural, it’s bad’ and the usual lefty crowd vilifying the corporate America.

With 90% of the food on the shelf containing GMO material, if someone really needs to have ‘produced with genetic engineering’ (statement from H112) and nothing more, printed on a label, then they meet all the qualification for becoming the ‘village idiot’.

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Kelly Cummings

2 years 8 months ago

One commonsense reason to label everything we eat We need to be able to track the foods we eat back to the source.

Two examples: in the case they need to recall a food or ingredient. In the event something develops that was unforeseen in current studies. Regardless of which side of the issue you come down on.

Seems we should all be able to agree on this. There is no judgement in this statement. It is just plain ol’ simple commonsense.

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Sue Ordinetz

2 years 8 months ago

Monsanto and other biotech companies hold patents on their genetically altered products. In order to get a patent, you have to prove that your product is unique and different. It is illegal to grant a patent for a naturally occurring entity, so the biotech companies have argued that their products are markedly different from what is found in nature. But when they want to convince the FDA that no research, regulation, or labeling is necessary, they argue that these products are no different than conventional products. So when people want to know whether these unique and different products are in… Read more »

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Jamie Carter

2 years 8 months ago

An apple is not an apple tree…

Apples from two trees maybe the same, even if one tree is markedly different from a genetic standpoint. That’s why there are different standards depending on whether you are talking about the plant or the food produced from the plant.

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Paula Schramm

2 years 8 months ago

Sue Ordinetz – You have summed it up beautifully !

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Brian Tokar

2 years 8 months ago

Very thorough coverage, and an important discussion here. One thing missing from the article, though, is that Val Giddings was a Vice President for 8 years of the Biotechnology Industry Organization, the leading biotech industry lobby in the US and internationally.

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Wayne Andrews

2 years 8 months ago

I can see the Attorney General all smiles as he defends the suit at a cost of 6 million big ones. Hell no we dont care and actually pat him on the back for the VY case. I can just picture the shopping carts parked to and fro between the ailes while the weak kneed liberals read a label that flashes a statement making them feel whole again. These liberals wont be happy until we all plant our own rows, mulch with pine needles and sew between with crooked tree branches. And you know what is going to be the… Read more »

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Paul Lorenzini

2 years 8 months ago

That why we shoot tham damn chucks! And thair good eatin too!

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David Dempsey

2 years 8 months ago

There not bad, but I prefer the young ones late in the summer after they fatten up a bit. Great organic source of protein.

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J. Scott Cameron

2 years 8 months ago

I love to read the conspiracy theorists. Unfortunately they cause so much harm, e.g., the myth that vaccinations cause autism. However, I don’t like Monsanto’s aggressive, anti farmer business practices either. If you can go organic do it. You’ll get a good price for your product and it may well be healthier for those who can afford it. However, whether you like it or not, we have a world of seven billion and growing out there. Ban even some of the “non-organic” agricultural innovations that came into being since the 1970’s and most of them starve to death pretty quickly.

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Paul Lorenzini

2 years 8 months ago

Maybe Vermont food producers could set themselves apart by labeling their own products as GMO free? Rise above, and the rest will follow.

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Hilary Cooke

2 years 8 months ago

Most definitely there should be a price tag attached to this legislation. Clarity in labeling? You bet, I am all for knowing what we are eating. I support Sen. Sears’ concern, however, that Vermont taxpayers recognize and affirmatively support the cost of this legislation. What I am troubled with is the fact that cost is being seriously considered so late in the game. Perhaps it is time for proponents for this legislation to pony-up the cost to defend this in court. VPIRG may be the perfect stakeholder to finance the defense fund defending the bill’s language that they support. Perhaps… Read more »

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Paula Schramm

2 years 8 months ago

It was the Attorney General’s office which voiced concern about setting a precedent. I think proponents would be very glad to contribute to a fund to finance the defense. It was a very interesting debate, and perhaps should be debated more. Does the state only legislate when there are enough rich individuals willing to pay for it ?

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Hilary Cooke

2 years 8 months ago

The idea of having proponents of legislation fund the expenses of enacting a bill (like VPIRG with the GMO bill) may simply serve to codify what is already legislative practice. I agree, this is an interesting debate…one where the mechanics may just as important as the content.

So, eating crops with a gene that produces an insecticide within the plant is of no concern to the doubters? Planting seeds that cannot reproduce and can cross pollinate with heritage seeds (and stops their ability to reproduce) gives no concern to the doubters? The fact that these seeds are produced with the intent to withstand treatment of Roundup has no concern from the doubters? Ok, let’s watch the doubters, they are the test subjects.

It all boils down to the same thing. Energy monopolozation, Big Agriculture, Big Pharma. ALL THE SAME THING. Isn’t it that 5 families control the world’s wealth? And these families own the corporate conglomerations that hypnotize the people with advertisements and that pay the lobbyists that shape the laws that govern the people. All while the people sit home after a hard day’s work and watch their televisions and buy into the themes that tell us how dissatisfied we are with what we have so we’ll buy, buy, buy. While people buy what the commmercials tell them to buy and… Read more »

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